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Overturning EPA’s Endangerment Finding Is a Constitutional Imperative

The Senate is expected to vote on the Murkowski resolution this week. Nothing less than the integrity of our constitutional system of separated powers and democratic accountability hangs in the balance. (Also watch Marlo Lewis at PJTV:"Donut Eaters Beware: The EPA May Want You")

by
Marlo Lewis

Bio

May 24, 2010 - 9:40 am
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This week, the U.S. Senate is expected to vote on a “resolution of disapproval,” sponsored by Republican Senator Lisa Murkowski of Alaska, to stop the U.S. Environmental Protection Agency from “enacting” controversial global warming policies through the regulatory back door.

The importance of this vote is difficult to exaggerate. Nothing less than the integrity of our constitutional system of separated powers and democratic accountability hangs in the balance.

Who Shall Make Climate Policy?

The Murkowski resolution would overturn the EPA’s “endangerment finding,” a December 2009 rulemaking in which the agency concluded that greenhouse gas emissions endanger public health and welfare. The endangerment finding is both trigger and precedent for sweeping policy changes that Congress never approved. America could end up with a regulatory regime more costly and intrusive than any climate bill or treaty the Senate has declined to pass or ratify, yet without people’s representatives ever voting on it.

Unless stopped, the EPA will be in a position to determine the stringency of fuel economy standards for the auto industry, set climate policy for the nation, and even amend the Clean Air Act — powers never delegated to the agency by Congress.

The Murkowski resolution puts a simple question squarely before the Senate: Who shall make climate policy — lawmakers who must answer to the people at the ballot box or politically unaccountable bureaucrats, trial lawyers, and activist judges appointed for life?

It might seem amazing that any senator would oppose such a measure. After all, senators take an oath to “support and defend” the Constitution, which vests “all legislative powers” in Congress (i.e., not in administrative agencies or courts). However, regulatory zealotry has a long history of trampling on constitutional principle, and many lawmakers would simply prefer to let the non-elected bureaucrats at the EPA take the heat for “enacting” costly climate policies.

Power Grab

Let’s examine in somewhat more detail the unauthorized powers the EPA will amass unless the endangerment finding is overturned.

For starters, the endangerment finding compels the EPA to establish greenhouse gas (GHG) emission standards for new motor vehicles. About 95% of vehicular GHGs are carbon dioxide (CO2) emissions from gasoline combustion. Because no commercial technologies exist to filter CO2 emissions from automobile tailpipes, automakers can significantly reduce the quantity of CO2 emitted per mile only by reducing the quantity of gasoline combusted per mile.

Thus, by setting GHG emission standards, the EPA can largely determine the stringency of new-car fuel economy standards. Congress should object, because the Clean Air Act gives EPA no authority to regulate fuel economy. Congress delegated that power to another agency (the Department of Transportation) under another statute (the Energy Policy and Conservation Act).

Once the EPA’s motor vehicle GHG standards take effect, CO2 by definition becomes a “regulated air pollutant.” That, in turn, makes any “major stationary source” of CO2 emissions subject to additional regulation under the Act’s Prevention of Significant Deterioration (PSD) pre-construction permitting program and Title V operating permits program. Firms will need to obtain PSD and Title V permits if they plan to build, modify, or operate “major” sources of CO2 emissions.

Similarly, the endangerment finding will empower the EPA to establish GHG “performance standards” for scores of industrial categories of emitters, such as power plants, refineries, and steel mills.

Thus, by issuing an endangerment finding, the EPA will deal itself into a position to control the economy — both mobile and stationary sources — for climate change purposes. Yet the Clean Air Act gives the EPA no such authority. Congress enacted the Clean Air Act in 1970, decades before global warming was even a topic of congressional debate. That is why phrases like “greenhouse gas,” “greenhouse effect,” and “global climate change” appear nowhere in the statute.

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